Amicus Curiae Brief — Howlett v. Rose

As Surbmnrsn oF Sonus tr Pinellas

; WitiiAmM Grey, THOMAS PETIT, and

> BOARD OF PINELLAS COUNTY, FLORIDA,

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AE IN SUPPORT OF RESPONDENTS N

STATE AND LOCAL LecaL CENTER

444 Nortn Capitol St., N. W.

Counsel of Record for the

Amici Curiae

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8 No. Inc. + 788-9096 - Wasnineron, O. C. 20008

4000 JW 180

QUESTIONS PRESENTED

Amici will address the following questions:

1. Whether a state court must entertain an action

against a school board under 42 U.S.C. § 1983 notwith-

standing a neutral state rule that divests state courts of

jurisdiction to hear suits against political subdivisions of

the State.

2. Whether Florida school boards are “persons” within

the meaning of Section 1983.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED |..00002..0..--------eer™

TABLE OF AUTMHORITIECSSsZb.

INTEREST OF THE AMICI CURIAE ......................-.

e

SUMMARY OF ARGUMENT

—

COUNTY SCHOOL BOARDS ARE NOT AMENA-

BLE TO SUIT IN FLORIDA STATE COURTS

UNDER 42 U.S.C. § 1988

A. Florida Courts Lack Jurisdiction To Entertain

Section 1983 Claims Against School Boards

1. Florida courts do not entertain Section 1983

actions against governmental units that

share the State’s sovereign immunity ............

2. The federal Constitution does not require

Florida courts to entertain Section 1983 ac-

tions when they lack jurisdiction to hear

analogous state-law claims

8. Section 1983 should not be read to confer

jurisdiction on state courts

B. School Boards In Florida May Not Be Amena-

ble To Suit As “Persons” Under Section 1983.

CONCLUSION .............. —— a = A — |

(iii)

Page

iv

iv

TABLE OF AUTHORITIES

CASES: Page

Arkansas Writers’ Project v. Ragland, 481 U.S.

QF yxy————E—— 16

Arney v. Department of Natural Resources, 448

So.2d 1041 (Fla. lst DCA 19840! 8

Atascadero State Hospital v. Scanlon, 473 U.S. 234

— . 20, 21

Beers v. Arkansas, 61 U.S. (20 How.) 527 (1858) 18

Bragg v. Duval County Board of Public Instrue-

tion, 36 So.2d 1 — 8, 26

Broward County v. Bouldin, 114 So.2d 737 (Fla.

rr EEE EEE a 1 27

Brown v. Gerdes, 321 U.S. 178 (194499 17

Buck v. McLean, 115 So. 2d 764 (Fla. Ist DCA

1969) ........... 1 8, 26

Bumbough v. City of Tampa, 403 So. 2d 1139 (Fla.

rn x x 14

Butler v. State, 450 So. 2d 1282 (Fla. 2d DCA

1984), approved, 469 So. 2d 1382 (Fla. 1985) 14

Califano v. Westcott, 443 U.S. 76 (19799 16

Carter v. City of Stuart, 468 So.2d 955 (Fla.

. ( 14

Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983) 13

Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.

＋Eỹ́ . ee oe Oe 26

Chapman v. Houston Welfare Rights Organization,

AGA, 22

Chapman v. State Dept. of Health & Rehabilitative

Services, 517 So. 2d 104 (Fla. 3d DCA 1987) x

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) 21

Circuit Court v. Department of Natural Resources,

$39 So.2d 1118 (Fla. 1976).................................... x

City of Daytona Beach v. Palmer, 469 So.2d 121

„ — 15

City of Delray Beach v. Watts, 461 So. 2d 142 (Fla.

4th DCA 1984), rev. denied, 475 So.2d 696 (Fla.

1985) 14

City of North ‘Miami | v. „ Schy, 408 80. 2d 670 (Fla.

11 — . ˖ 8

City of Riviera Beach v. Langevin, 522 So. 2d 857

rr xx 9

*

TABLE OF AUTHORITIES—Continued

Page

City of Tallahassee v. Fortune, 3 Fla. 19 (1850) .... 26

Claflin v. Houseman, 93 U.S. 130 (1876) 10, 11, 17, 21

Collector v. Day, 78 U.S. (11 Wall.) 113 (1871)... 24, 25

Commercial Carrier Corp. v. Indian River County,

CQ EE 26

Conover v. Board of County Commissioners, 527

So.2d 946 (Fla. 3d DCA 1988))))) 14

Cunningham v. Macon & Brunswick R.R., 109 US.

Es ee nec ee 19

Dade County v. Florida Ass'n of Workers gor the

Blind, 173 So.2d 160 (Fla. 3d DCA 1965) 27

Delgado v. City of Miami Beach, 518 So.2d 968

ieee 14

Department of Transportation v. Neilson, 419

| | | Dll = 14

District of Columbia v. Carter, 409 U.S. 418

| en eee 23

Douglas v. New York, V. V. & H. R. R., 279 US.

r AES ̃ ̃ ͤ—— Nm 11, 12, 17

Elliott v. City of Hollywood, 399 So.2d 507 (Fla.

r .... Seo 14

Ellmer v. City of St. Petersburg, 378 So. 2d 825

(Fla. 2d DCA 19799 ie 14

Employees v. Missouri Public Health Dept., 411

, a een eee 17

Everton v. Willard, 468 80.20 936 (Fla. 1985) 14, 15

Felder v. Casey, 108 S.Ct. 2302 (1988) 4. 9, 21-22, 23

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 20

FERC v. Mississippi, 456 U.S. 742 (1982) _......10, 18, 24

Franklin County School Board v. Page, 540 So.2d

8, 8 2 -%. | 9

Gamble v. Florida Dept. of Health & Rehabilita-

tive Services, 779 F.2d 1509 (11th Cir. 1986) 13

Garcia v. Board of Education, 777 F.2d 1403 (10th

Cir. 1985), cert. denied, 479 U.S. 814 (1986) 26

General Oil Co. v. Crain, 209 U.S. 211 (1908) 19

Heckler v. Mathews, 465 U.S. 728 (1983) 16

Herb v. Pitcairn, 324 U.S. 117 (1945) ..................... 11,12

vi

TABLE OF AUTHORITIES—Continued

Higdon v. Metropolitan Dade County, 446 So.2d

203 (Fla. 3d DCA 1984). 9

Hill v. Department of Corrections, 513 So.2d 129

Fla. 1987), cert. denied, 108 S.Ct. 1024 (1988). 3,8

Hooper v. Bernalillo County Assessor, 472 US.

612 (1985) 5 16

Hopkins v. Clemson Agricultural College, 221 U. 8.

I — . en 19

Jimmy Swaggart Ministries v. Board of Equalize-

tion, No. 88-1374 (Jan. 17, 1990⸗·- 18

Kaisner v. Kolb, 509 So.2d 1213 (Fla. 2d DCA

% ct aati arlene 15

Kaulakis v. Boyd, 138 So.2d 505 (Fla. 196257 27

Keggin v. County of Hillsborough, 71 So. 372 (Fla.

1 3 —— mee on Cee ere 27

Kentucky v. Dennison, 65 U.S. (24 How.) 66

11 wl. ene ae eee Seen re ee 25

Lake Country Estates, Inc. v. Tahoe Regional Plan-

ning Agency, 440 U.S. 391 (1979777 25-26

Lloyd v. Ellis, 520 So.2d 59 (Fla. Ist DCA 1988) 8

Maestas v. Board of Education, 749 F.2d 591 (10th

r EDEN a oe nen 26

Maine v. Thiboutot, 448 U.S. 1 (1980) 4,9

Manatee County v. Town of Longboat Key, 365

So.2d 143 (Fla. 1979) ** 27

Martinez v. Board of Education, 748 F.2d 1393

(10th Cir. — eee 26

Martinez v. California, 444 U.S. 277 (1980) 3, 4, 9,

12, 22

McKnett v. St. Louis & S.F. Ry., 292 U.S. 230

D cae aceasta aa — 10, 11, 12

Meeker v. Addison, 586 F. Supp. 216 (S.D. Fla.

1984) ae 13

Michigan v v. Tyler, 436 US. 499 (1978) 22 18

Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S.

1 (1950) — : 11, 12, 15, 17

Mitchum v. Foster, 407 US. 225 (1972) . 23

Mondou v. New York, N. H. & H.R. R., 223 U.S. 1

Ec 10, 11, 12

vii

TABLE OF AUTHORITIES—Continued

Page

Monell v. New York City Dept. of Social Services,

436 U.S. 658 (1978) ————————— 24, 25, 28

Moor v. County of Alameda, 411 U.S. 693 (1973). 25

Mt. Healthy City Board of Education v. Doyle,

4 . 25, 26, 28

Nevada v. Hall, 440 U.S. 410 (197999 18, 20, 21

Ohio Oil Co. v. Conway, 279 U.S. 813 (1929) ........ 19

Orr v. Orr, 440 U.S. 268 (1979) — 16

Owen v. City of Independence, 445 U.S. 622

r ea 26

Palmer v. Onio, 248 U.S. 32 (1918) 11 19

Palumbo v. State Game & Fresh Water Fish

Comm’n, 487 So.2d 352 (Fla. lst DCA 1986) 14

Parker v. Murphy, 510 So.2d 990 (Fla. lst DCA

4 14

Patsy v. Florida Board of Regents, 457 U.S. 496

„rr 23

Payne v. Palm Beach County, 395 So. 2d 1267

nr ee 14

Pennsylvania v. Union Gas Co., 109 S. Ct. 2273

111170 — M eee rere ED 19

Penthouse, Inc. v. Saba, 399 So. 2d 456 (Fla. 2d

DCA), rev. denied, 408 So. 2d 1095 (Fla. 1981) 8

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539

(nth et EET aL nat A te a 24, 25

Puerto Rico v. Branstad, 483 U.S. 219 (1987) 25

Quern v. Jordan, 440 U.S. 332 (19799999 24

Railroad Co. v. Tennessee, 101 U.S. 337 (1880) 19

Richter v. Dade County Board of Public Instruc-

tion, 91 So.2d 794 (Fla. 1957777777777 8, 26

Rosenberg v. Kriminger, 469 So.2d 879 (Fla. 2d

DCA 1985) NAR So a SO 14

Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA

EE SRS rae cet ae i ee 8

Shinholster v. Graham, 527 F. Supp. 1318 (N.D.

ES a a ne ee 13, 16

Skobolow v. Ameri-Manage, Inc., 483 So.2d 809

(Fla. 3d DCA 1986), aff d, 514 So.2d 1077 (Fla.

viii

TABLE OF AUTHORITIES—Continued

Page

Southern Alliance Corp. v. City of Winter Haven,

505 So.2d 489 (Fla. 2d DCA 1987) 9

Spooner v. Department of Corrections, 514 So.2d

I Ee eee 8

Tafflin v. Levitt, No. 88-1650 (Jan. 22, 1990) 10, 21

Testa v. Katt, 330 U.S. 386 (19477777 10, 11, 12, 13

Texas Monthly, Inc. v. Bullock, 109 S. Ct. 890

1 16

Trianon Park Condominium Ass'n v. City of

Hialeah, 468 So.2d 912 (Fla. 1985) 14, 15

Welch v. Texas Dept. of Highways, 483 U.S. 468

27% — — 20

Wengler v. Druggists Mutual Insurance Co., 446

OR oe — 16

Will v. Michigan Dept of State Police, 109 S. Ct.

RCE ..... passim

Zobel v. Williams, 457 U.S. 55 (19822777 16

CONSTITUTIONAL PROVISIONS:

Federal :

Supremacy Clause, U.S. Const. Art. VI, cl. 2...4, 10, 12, 15

U.S. Const. Amend. 1iI . 8 6, 13, 18, 19, 25

State:

r x 27

EE / /x 8

STATUTES:

Federal:

1 — ——— — passim

Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. a 22

Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13... 21, 22

Federal Employers’ Liability Act, 45 U.S.C. §§ 51-

r 11,17

Judiciary Act of 1911, ch. 231, § 24, 36 Stat. 1087. 22

Z LRT TET 22

Z 22

ix

TABLE OF AUTHORITIES—Continued

State:

r

n ————————.—

r

r

j ß *

r . 3

r

neee —

ä

. 3

.

r

ren ———.——.—

r

Fla. Stat. 88 233.011.638 8 — a

Z —

Fla. Stat. 66 285.001,48 eee ceeeeeeeee

Z

Fla. Stat. § 237.02 a — at

Z

r .

Fla. Stat. § 237.0111

Fla. Stat. §§ 284.30-.33 .

Fla. Stat. § 284.38 — — — 6

r

Z 0c sconsconcssnnessuvecencunsestnimestonnseenss

Fla. Stat. § 768.38(5) P

Ohio Rev. Code Ann™§ 2743.01 (Page Supp. 1975)

LEGISLATIVE MATERIALS:

Cong. Globe, 42d Cong., Ist Sess. (1871)

x xi

TABLE OF AUTHORITIES—Continued TABLE OF AUTHORITIES—Continued

Page Page

1 cc 24 Fletcher, A Historical Interpretation of the Elev-

— — — ESS 24 enth Amendment: A Narrow Construction of

I ID a cencsencsennsesensensaersncesnenensnnaracnusnsnnnnenenesens 24 an Affirmative Grant of Jurisdiction Rather

2 — 23 than a Prohibition Against Jurisdiction, 35

| — 24 hm), OE OSE 19

I I i ceenccccnccencinanvesswneseumecsnnescenenasanemenensonsens 24 Hart, The Relations Between State and Federal

IID —ů — — — 24 Law, 54 Colum. L. Rev. 489 (1954) 17

111 ů— a 23 Herman, Beyond Parity: Section 1983 and the

r r 24 State Courts, 54 Brooklyn L. Rev. 1057 (1989) .. 22, 23,

57 K 24 24

8989890 ————— 24 Note, The Enforceability and Proper Implementa-

111 Ne N 24 tion of § 1983 and the Attorney's Fees Awards

89899900906 — 23 Act in State Courts, 20 Ariz. L. Rev. 743

5 — 24 tO ———————— 22

Cong. Globe, 42d Cong., Ist Sess., App. (1871) Sandalow, Henry v. Mississippi and the Adequate

ages 68-69 24 State Ground: Proposals for a Revised Doctrine,

1 — veniemnmmanmee 1965 Sup. Ct. Rev. 18 77. 10, 18, 19, 20

1 20 S. Steinglass, Secticn 1983 Litigation in State

page ' 23, 23-24 | ·üR 22 9, 12

page 18 6 eee 24 L. Tribe, American Constitutional Law (2d ed.

page 1999 — 24 een 13

PAG! 216... onencen 23 Warren, Federal Criminal Laws and the State

mam, 24 Courts, 38 Harv. L. Rev. 545 (19287 24

18 9800..——7j5r;ꝛ23—————ߧ7ð¶P:8k(—? 24

* 5 . eennee In 24

00 311 —————— 24

MISCELLANEOUS:

Annual Budget Summary, 1989-90, Pinellas

County Schools, Clearwater, Florida 28

P. Bator, D. Meltzer, P. Mishkin & D. Shapiro,

Hart & Wechsler’s Federal Courts & the Federal

Syatem 10 ——.—＋L*•2kpyqͥ g1!ÿéçéêůrv⁰ 19

Comment, The Florida Supreme Court’s View of

State Sovereign Immunity: An Exercise in Con-

fusion Producing Restrictive Results, 15 Stet.

L. Rev. 831 (1986) 14

D. Currie, Federal Courts (2d ed. 1975) .. 19

1

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-5383

MARK HOWLETT, a minor by and through

Elizabeth Howlett, his mother,

natural guardian and friend,

Petitioner,

V.

Scott Rose, AS SUPERINTENDENT OF SCHOOLS for Pinellas

County, Florida; WILLIAM GREY, THOMAS PETIT, and

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA,

Respondents.

On Writ of Certiorari to the

District Court of Appeal of Florida

Second District

BRIEF OF THE

NATIONAL ASSOCIATION OF COUNTIES,

U.S. CONFERENCE OF MAYORS,

COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county and municipal governments and officials through

out the United States; they have a compelling interest in

legal issues that affect state and local governments.

Amici and their members will be directly affected by

the Court’s resolution of the issues in this case: when

state courts must entertain federal causes of action, and

which state-created entities are subject to suit under 42

U.S.C. § 1983. The States’ control over their own court

systems is an essential element of their sovereignty; peti-

tioner’s attempt to impose limits on the Florida authority

to construct neutral jurisdictional rules accordingly

threatens a significant interference with traditional state

prerogatives. At the same time, an expansive application

of Section 1983 would have a direct financial impact on

States and localities. Amici therefore submit this brief

to assist the Court in the resolution of this case.’

STATEMENT n

1. Petitioner was a student at St. Petersburg High

School in Pinellas County, Florida. According to peti-

tioner's complaint, on October 9, 1986, petitioner parked

his locked car on school grounds in a manner that, in

the judgment of school officials, obstructed the movement

of construction vehicles in the area. J.A. 4-5. Thomas

Petit, an assistant school principal, accordingly pushed

open a side vent window in an attempt to determine who

owned the vehicle. J.A. 4. Petit apparently gained entry

to the vehicle (ibid.) and, while inside, discovered several

bottles that had contained alcoholic beverages. J.A. 5.

Petitioner thereafter received a five-day suspension from

school for violating regulations that prohibited the pos-

session of alcohol by students. J.A. 6.

In response, petitioner brought this suit in state court

under 42 U.S.C. 8 1983 against several school officials

and respondent school board, asserting that the entry

into his car denied him his Fourth Amendment rights

(J. A. 6), tha the school regulations relating to the pos-

session of alcohol were unconstitutionally vague (J.A. 8-

9), and that the suspension denied him due process. J.A.

10. Petitioner demanded damages, injunctive relief, and

an award of attorney’s fees. J.A. 7-8, 8-9, 11-12. The

1 The parties’ letters of consent pursuant to Rule 37.3 of the Rules

of this Court have been filed with the Clerk of the Court.

suit was dismissed by the trial court in a one-sentence

order. J.A. 19.

2. The district court of appeals affirmed the dismissal.

J.A. 24-27.2 Relying on Hill v. Department of Correc-

tions, 513 So.2d 129 (Fla. 1987), cert. denied, 108 S.Ct.

1024 (1988), the court held that, “when a section 1983

action is brought in state court, the sole question to be

decided on the basis of state law is whether the state has

waived its common law sovereign immunity to the ex-

tent necessary to allow” the action. J.A. 26 (emphasis

in original). Because “[t]here is no question under

Florida law that agencies of the state, including school

boards, ]“ retain sovereign immunity (ibid.), the court

concluded that it could not entertain petitioner’s suit.

The court added that this Court’s decision in Martinez

v. California, 444 U.S. 277 (1980), was not controlling

because “[t]he question of whether a state has opened

its own courts for federal actions against the state which

the state does not otherwise recognize is purely a question

of state law.“ J. A. 27.“

The Florida Supreme Court denied review. J. A. 28.

2 Petitioner suggests (Br. 17-19) that the district court of appeal’s

decision leaves some doubt about whether Florida courts will enter-

tain Section 1983 actions against either, government officials sued in

their individual capacities or officials sued for injunctive relief in

their official capacities. In fact, however, the issues presented on

appeal by petitioner did not relate to the dismissal of the action

against the individual defendants (see J.A. 24-25), and it appears

that the district court of appeal accordingly did not consider that

element of the case to be before it.

The court explained that the controlling issue raised by peti-

tioner was “whether the question of a state and its subdivisions’

sovereign immunity to an action brought in a state court under the

Federal Civil Rights Act of 1871, 42 U.S.C. § 1983, is a question of

state or federal law?” J.A. 24. Because petitioner focused on that

legal point, the court indicated that [the question of the scope

of that sovereign immunity, or whether a particular act is protected

by that sovereign immunity, is not before us on this appeal, nor was

it before the trial court” (J. A. 25), adding that the extent of that

sovereign immunity and its applicability under Florida law in this

case has not been addressed by [petitioner].“ J. A. 26.

4

SUMMARY OF ARGUMENT

A. The court below dismissed petitioner’s suit because,

absent a waiver of sovereign immunity, the Florida Con-

stitution divests the state courts of jurisdiction to enter-

tain claims against the State or its political subdivisions;

absent such a waiver, state courts therefore have no

authority to hear Section 1983 claims (or any other

claims, for that matter) against Florida school boards.

Against this background, the Court’s decisions in Martinez

v. California, 444 U.S. 277 (1980), and Felder v. Casey,

108 S.Ct. 2302 (1988), upon which petitioner in large

part relies, are simply inapposite. In both of those cases

state courts had accepted jurisdiction of the federal

claim. Here, in contrast, the controlling question is one

left open in Martinez and Maine v. Thiboutot, 448 U.S.

1 (1980): whether and in what circumstances state

courts must entertain Section 1983 claims.

B. In a series of cases decided between 1912 and 1950,

the Court set out the principles that determine when—

in the absence of clear guidance from Congress—state

courts must take jurisdiction of suits grounded on fed-

eral law. These decisions make clear that a state court,

if it has jurisdiction to hear the suit and entertains

analogous state-law claims, may not decline to adjudicate

a particular federal action simply because it disagrees

with the policy effectuated by federal law; it necessarily

follows that state courts may not discriminate against

federal causes of action. At the same time, however,

state courts are under no obligation to disregard even-

handed jurisdictional limitations that exclude both state

and federal claims. The unifying principle of these deci-

sions is plain. Under the Supremacy Clause, a State

must treat a federal cause of action as its own substan-

tive law, and must open its courts to such actions to the

same extent—but only to the same extent—that it opens

them to state-created claims. A straightforward applica-

tion of this principle disposes of petitioner’s suit:

Florida’s fundamental law divests state courts of juris-

diction to entertain actions against the State or its po-

litical subdivisions. *

Petitioner attempts to circumvent this principle by ar-

guing that Florida has waived its immunity selectively

in a manner that discriminates against federal claims.

In fact, however, Florida’s tort claims statute precludes

state courts from entertaining any claim against the

State or its political subdivisions—whether based on state

or on federal law—that challenges law enforcement ac-

tivities or other discretionary exercises of government

power. This plainly was the view of the court below,

which explained that petitioner was asking Florida to

“open|| its own courts for federal actions against the

state which the state does not otherwise recognize.” J.A.

27 ‘emphasis added). In any event, even if we are

wrong in this and Florida’s waiver of immunity is un-

derstood to be discriminatory, the choice of remedy

(whether expansion or contraction of the waiver) should

be left to the state courts to settle as a matter of state

law.

C. Petitioner’s contention that the state courts should

be obligated to entertain Section 1983 actions even in

the absence of discrimination between state and federal

claims is insupportable. His argument would require a

dramatic extension of this Court’s decisions, which never

have held that the state courts are obligated to entertain

federal actions when those courts do not hear analogous

suits based on state law. And petitioner’s approach

would sweep aside doubts bout Congress’s constitut* na!

authority to expand the jurisdiction of unwilling state

courts—doubts that hawe particular force in the area of

sovereign immunity. At a minimum, the Court should

not attempt to resolve the difficult questions about the

scope of national authority in this area, and should not

countenance such a substantial intrusion on the State's

sovereign prerogatives, unless Congress has made abso-

lutely clear its intention to require the exercise of state

court jurisdiction.

Yet it is plain that Congress had no such intention

here. To the contrary, Congress’s very purpose in enact-

ing Section 1983 was the creation of a federal remedy

that would allow federal courts to substitute for ineffec-

tual state courts in protecting federal rights. Indeed, in

the statute’s original form, the federal courts had exclu-

sive jurisdiction to entertain claims under Section 1983;

while the provisions conferring exclusive jurisdiction were

dropped over the years during routine revisions of the

Judicial Code, Congress never suggested that it was im-

posing affirmative obligations on state courts. Indeed,

had such an unlikely proposal been made, the 42d Con-

gress surely would have thought itself without the con-

stitutional authority to require the exercise of state court

jurisdiction over Section 1983 actions. It is hardly likely

that a statute emerging from such a tradition was in-

tended to impose uniquely burdensome obligations on

state courts.

D. Even if the Court concludes that the Florida courts

are obligated to exercise jurisdiction over petitioner's

claim, there is reason to doubt that respondent school

board is a proper defendant in a Section 1983 action.

The Court’s holding in Will v. Michigan Dept. of State

Police, 109 S.Ct. 2304 (1989), that States are not per-

sons” within the meaning of Section 1983 extends to all

governmental entities that are considered arms of the

State for Eleventh Amendment purposes. Whether a

particular school board has characteristics that make it

a “nonperson” accordingly depends on the nature of the

entity created by state law. Here, Florida school boards

are, by statute, treated identically to state agencies for

sovereign immunity purposes. The State retains respon-

sibility for public education, and has prescribed detailed

requirements relating to virtually every aspect of the

education system. The State also provides over one-half

of respondent school board’s funding. These factors

strongly suggest that Florida school boards are arms of

the State; at a minimum, this Court (if it requires the

exercise of state court jurisdiction) should remand the

case so that the court below may, in the first instance,

7

have an opportunity to analyze state law with this issue

in mind.

ARGUMENT

COUNTY SCHOOL BOARDS ARE NOT AMENABLE

TO SUIT IN FLORIDA STATE COURTS UNDER 42

U.S.C. § 1983

A. Florida Courts Lack Jurisdiction To Entertain Section

1983 Claims Against School Boards

In suggesting that this is an “immunity case (Br.

7), petitioner views the issue here from the wrong per-

spective. The outcome below did not involve the use of

state-created defenses or procedural rules to defeat a fed-

eral cause of action, as petitioner seems to suppose. See

Pet. Br. 8-16. The court of appeal’s decision turned, in-

stead, on consideration of a more complex issue: whether

a state court that is precluded from hearing an action

by a neutral limitation on its jurisdiction—and that does

not entertain analogous state-created suits—nevertheless

must consider and resolve the merits of a claim simply

because it is grounded on federal law. The court below

properly concluded that the federal Constitution imposes

no such obligation on state courts.

1. Florida courts do not entertain Section 1983 actions

against governmental units that sharc the State's

sovereign immunity.

Although petitioner suggests that there is some doubt

on this point (Br. 17-19), we think it clear that the court

below dismissed petitioner’s action because it concluded

that Florida courts lack jurisdiction to entertain Section

1983 claims against political subdivisions of the State.

The court explained that the question before it was

“whether the state has waived its common law sovereign

immunity to the extent necessary to allow a section 1983

action in state court” ‘J.A. 26), an inquiry it considered

equivalent to t Ihe question of whether the state has

opened its own courts for federal actions against the

state which the state does not otherwise recognize.” J.A.

27. Answering these questions in the negative required

8

the court to dismiss for lack of jurisdiction. The com-

mon law immunity of Florida and its political subdi-

visions—which plainly include county school boards ‘—is

grounded, after all, in the state Constitution“; and in

Florida, as in most States, that common law “immunity

from suit relates to subject matter jurisdiction.”

Schmauss v. Snoll, 245 So.2d 112, 113 (Fla. 3d DCA

1971). Our reading of the decision below, it should

be added, is consistent with other holdings making

clear that Florida courts will entertain Section 1983 ac-

tions against individuals,” but not against the State or

political subdivisions clothed with sovereign immunity.’

*“County boards of public instruction are agencies of the State

and as such are clothed with the same degree of immunity from

suit as is the State * [C]ounty school boards are part of the

machinery of government operating at the local level as an agency

of the State in the performance of public functions.” Buck v.

McLean, 115 So.2d 764, 765 (Fla. Ist DCA 1959). See also, . .,

Richter v. Dade County Board of Public Instruction, 91 So.2d 794

(Fla. 1957); Bragg v. Duval County Board of Public Instruction,

36 So.2d 222 (Fla. 1948).

5 See Fla. Const. Art. X, § 13 (Provision may be made by general

law for bringing suit against the state as to all liabilities now exist-

ing or hereafter originating”). Although this provision in terms

addresses only the possibility of waiver, “Florida courts have often

interpreted the language in Article X, Section 13, * * * as providing

absolute sovereign immunity for the state and its agencies absent

waiver by legislative enactment or constitutional amendment.” Cir-

cuit Court v. Department of Natural Resources, 339 So.2d 1113, 1114

(Fla. 1976). g

® See, g., Lloyd v. Ellis, 520 S „2d 59, 60 (Fla. Ist DCA 1988

Chapman v. State Dept. of Health & Rehabilitative Services, 517

So. 2d 104, 105-106 (Fla. 3d DCA 1987); Arney v. Department of

Natural Resources, 448 So.2d 1041, 1045 (Fla. Ist DCA 1984

Penthouse, Inc. v. Saba, 399 So.2d 456, 458-459 (Fla. 2d DCA), rev.

denied, 408 So.2d 1095 (Fla. 1981).

7 See, ., Lloyd, 520 So.2d at 60: Spooner v. Department of Cor-

rections, 514 So.2d 1077,-1078 (Fla. 1987): Hill v. Department of

Corrections, 513 So.2d 129 Fla. 1987), cert. denied, 108 S.Ct. 1024

(1988): Skobolow v. Ameri-Manage, Inc., 483 So.2d 809, 811 & n.1

(Fla. 3d DOA 1986), aff'd, 514 So.2d 1077 (Fla. 1987); City of

North Miami v. Schy, 408 So.2d 670 (Fla. 3d DCA 1981). As peti-

tioner notes (Br. 18 n.19), several Florida district courts of appeal

9

Against this background, the Court’s decisions in

Martinez v. California, 444 U.S. 277 (1980), and Felder

v. Casey, 108 S.Ct. 2302 (1988), upon which petitioner

in large part relies (Br. 7-16), are simply inapposite. In

Martinez, the state court had “accepted jurisdiction of

thle] federal claim” (444 U.S. at 283 n.7); in holding

that a state-created immunity that “merely provide di a

defense” to that claim (id. at 281) could not have a dis-

positive effect (id. at 284 & n.8), the Court carefully

reserved the question whether and in what circumstances

“a State must entertain a claim under § 1983.” Id. at

283 n.7 (emphasis in original). Felder, which held that

state courts may not use their own outcome-determinative

procedural rules in adjudicating Section 1983 suits (see

108 S.Ct. at 2306-2307), also was a case where the state

court had accepted jurisdiction over the federal action

(see ibid.); the decision therefore does not address the

scope of a state court’s obligation to entertain Section

1983 actions in the first instance. See S. Steinglass,

Section 1983 Litigation in State Court, §9.3(¢) at 9-17

(1988). It is that question, which the Court left open in

Martinez and Maine v. Thiboutot, 448 U.S. 1, 3 nil

(1980), that is controlling here.

2. The Federal Constitution does not require Florida

courts to entertain Section 1983 actions when they

lack jurisdiction to hear analogous state-law claims.

The Court has not had much occasion to consider the

obligation of state courts to entertain federal claims;

historically, the Court more often has addressed its at-

have entertained Section 1983 actions against localities (and, in one

case, a school board) without any discussion of the jurisdictional

issue. See, e.g., Franklin County School Board v. Page, 540 So.2d

891, 892 (Fla. Ist DCA 1989); City of Riviera Beach v. Langevin,

522 So.2d 857, 860, 866-868 (Fla. 4th DCA 1987); Southern Alliance

Corp. v. City of Winter Haven, 505 So.2d 489, 493-494 (Fla. 2d DCA

1987); Higdon v. Metropolitar Dade County, 446 So.2d 203, 205-208

(Fla. 3d DCA 1984). Given the Florida Supreme Court's denial of

review in this case, those decisions cannot be viewed as authorita-

tive statements of the law in Florida.

10

tention to the question of when willing state courts

should be permitted to assume jurisdiction over actions

grounded on federal law. See, e.g., Tafflin v. Levitt, No.

88-1650 (Jan. 22, 1990), slip op. 3 (citing cases) ;

Sandalow, Henry v. Mississippi and the Adequate State

Ground: Proposals for a Revised Doctrine, 1965 Sup. Ct.

Rev. 187, 203. In that setting, the Court has long made

clear that, “if exclusive jurisdiction [in the federal

courts} be neither express nor implied, the State courts

have concurrent jurisdiction whenever, by their own con-

stitution, they are competent to take it.” Claflin v.

Houseman, 93 U.S. 130, 136 (1876). See Tafflin, slip op.

3. But in a series of six cases decided between 1912 and

1950, the Court set out the principles that determine

when—in the absence of clear guidance from Congress—

state courts must take jurisdiction of suits grounded on

federal law.

a. In Mondou v. New York, N.H. & H.R.R., 223 US.

1 (1912), McKnett v. St. Louis & S.F. Ry., 292 U.S. 230

(1934), and Testa v. Katt, 330 U.S. 386 (1947, where

the Court required unwilling state courts to entertain

federal actions, it emphasized that those courts already

had jurisdiction adequate to resolve the federal suit, and

in fact entertained analogous state-law claims. See Mon-

dou, 223 U.S. at 55-57; McKnett, 292 U.S. at 232-233;

Testa, 330 U.S. at 394. See also FERC v. Mississippi,

456 US. 742, 760 (1982). In these circumstances,

where Congress had made no “attempt to enlarge or reg-

ulate the jurisdiction of state courts” (Mondou, 223 U.S.

at 56), the Mondou Court made clear that a state court

eis just as much bound to recognize federal laws] as

operative within the State as it is to recognize the state

laws.’” 223 U.S. at 58, quoting Claflin, 93 U.S. at 137.

In reaffirming this approach, the Court in Testa ex-

plained that the obligation of state courts to enforce

federal law is grounded on the Supremacy Clause, again

relying on Claflin to “repudiate|| the assumption that

federal laws can be considered by the states as though

they were laws emanating from a foreign sovereign.”’

11

330 U.S. at 390-391. The Testa Court accordingly held

that a State could not “establish|] policy against en-

forcement by its courts of statutes of other states and

the United States which it deems penal.” Id. at 392.

And in McKnett, the Court looked by analogy to the

Privileges and Immunities and Full Faith and Credit

Clauses in holding that a state court may not refuse to

adjudicate an action “solely because the suit is brought

under a federal law.” 292 U.S. at 233-234.

Conversely, in three decisions issued during the same

period—all of which, like Mondou and McKnett, involved

actions under the Federal Employers’ Liability Act

(FELA), 45 U.S.C. §§ 51-60—the Court affirmed the

power of state courts to decline to entertain certain fed-

eral actions. In Douglas v. New York, N. H. & H.R.R.,

279 U.S. 377 (1929), the Court, citing Mondou, held that

a State’s policy of giving preference in its courts to suits

by state residents provided a “valid excuse” (279 U.S. at

388) for dismissal of a federal action against a foreign

corporation by a nonresident. Id. at 386-388. The Court

reaffirmed that decision in Missouri ex rel. Southern Ry.

v. Mayfield, 340 U.S. 1 (1950), holding that a state

court may decline to adjudicate a federal action “if in

similar [state-law| cases the State for reasons of local

policy denies resort to its courts and enforces its policy

impartially [citing McKnett|, so as not to involve a dis-

crimination against Employers’ Liability Act suits.” Id.

at 4: see id. at 5. And in Herb v. Pitcairn, 324 U.S. 117

(1945), the Court upheld a State’s authority to dismiss

a federal action that had been brought in a state court

of limited jurisdiction, explaining that application of

such an evenhanded jurisdictional limitation is a “ ‘valid

excuse’”’ that justifies dismissal. Id. at 120, quoting

Douglas, 279 U.S. at 387-388.

These holdings effectively establish a series of pre-

sumptions that control the actions of state courts in the

absence of clear congressional directives either preclud-

ing or purporting to require the exercise of state-court

jurisdiction. Under Claflin and its progeny, state courts

12

are presumptively authorized to entertain claims

grounded on federal law, so long as they have jurisdic-

tion to do so under their own state constitutions. Under

Mondou, McKnett, and Testa, a state court, if it has

jurisdiction to hear the suit and entertains analogous

state-law claims, may not decline to adjudicate a particu-

lar federal action simply because it disagrees with the

policy effectuated by the federal law; it necessarily fol-

lows that state courts may not discriminate against fed-

eral causes of action. At the same time, however,

Douglas, Mayfield, and Herb make clear that state

courts are under no obligation to disregard evenhanded

jurisdictional limitations that exclude both state and

federal claims. The rationale for this approach (and

the unifying principle of the decisions) is plain: under

the Supremacy Clause, a State must treat a federal

cause of action as its own substantive law, and must

open its courts to such actions to the same extent—but

only to the same extent—that it opens them to analo-

gous state-created elaims.“

A straightforward application of these principles is

enough to dispose of this case. As we explain above,

Florida’s fundamental law—its State Constitution—di-

vests state courts of jurisdiction to entertain claims

against the State’s political subdivisions. So long as

Florida applies this rule evenhandedly to bar analogous

This prineiple is fully applicable in Section 1983 suits. Martinez

itself, in addressing the scope of state-court jurisdiction to entertain

Section 1983 actions, suggested that state courts are under an obli-

gation to hear federal claims “where the same type of claim, if

arising under state law, would be enforced in the state courts.” 444

U.S. at 283 n.7. Thus a commentator who is generally sympathetic

to petitioner’s view of the law has noted, pointing to Martinez, that

“the Court’s comment about the nondiscrimination bar suggests

that as long as state courts act evenhandedly, they may decline

to entertain certain § 1983 actions.” Steinglass, supra, §9.2 at

9-4. See id. § 9.3(b) at 9-13 (“To exclude § 1983 cases, states would

have to close their courts to similar actions authorized by state and

federal law against state and local governmental bodies and their

employees” ).

petitioner's challenge to the Florida rule “clearly over-

steps Testa’s bounds: How can a state be charged wi

Sa 2 — — agen

n state courts against the sovereign?“ L. Tribe,

American Constitutional Law 184 n.45 (2d ed. 1988).

d. In an attempt to circumvent these principles,

tioner suggests (Br. 20-23) that Florida ‘has waived its

will not entertain any claim against the State or its po-

litical subdivisions—whether based on state or federal

discretionary exercises governmental power.’ This

plainly was the view of ‘»urt below, which explained

that petitioner was asking Fiorida to open] its own

courts for federal actions against the state which the

state we not otherwise recognize.” J. A. 27 (emphasis

* The line drawn by Florida’s tort claims statute thus is not the

one between state and federal claims; it is, instead, the line “be-

tween tort claims and other civil suits, which would, of course,

include federal civil rights actions.” Shinholster v. Graham, 527

F. Supp. 1318, 1335 (N. D. Fla. 1981). Indeed, in at least one respect

Florida provides uniquely favorable treatment to federal civil rights

actions. The State mak.» insurance against adverse judgments avail-

able through a risk management trust fund. Fla. Stat. §§ 284.30-

33. But judgments payable under Section 1983 and other federal

civil rights statutes, unlike all other claims payable from the fund,

are not subject to ceilings set out in the state tort claims act. Fla.

Stat. § 284.38. It should be added that there is nothing surprising in

the fact that the federal decisions cited by petitioner (Br. 20-21) on

the scope of the tort claims act’s waiver specifically address them-

selves to federal civil rights claims; the question in those cases was

whether Florida had waived its Eleventh Amendment immunity

against suit in federal court. See Gamble v. Florida Dept. of Health

& Rehabilitative Services, 779 F.2d 1509, 1515 (11th Cir. 1986);

Shinholster, 527 F. Supp. at 1329-1332. See also, e.g., Cate v.

Oldham, 707 F.2d 1176, 1182 n4 (11th Cir. 1983): Meeker v.

Addison, 586 F. Supp. 216, 220 (S.D. Fla. 1984).

4

provides that the State and its political subdivisions are

liable in tort only “in the same manner

extent as a private individual under like circumstances.”

Fla. Stat. § 768.28(5). As interpreted by the Florida

ernmental and proprietary activities.“ In particular, im-

munity continues to clothe “discretionary functions

government [that] are inherent in the act of governing”

(Trianon Park Condominium Ass’n v. City of Hialeah,

468 So.2d 912, 918 (Fla. 1985))—a category that in-

cludes exercises of police power and, more generally,

activity relating to law enforcement and public safety.“

1% Comment, The Florida Supreme Courts View of State Sov-

ereign Immunity: An Exercise in Confusion Producing Restrictive

Results, 15 Stet. L. Rev. 831, 837, 852 (1986).

1 See, e. g., Rosenberg v. Kriminger, 469 So.2d 879, 880-881 (Fla.

3d DCA 1985); Carter v. City of Stuart, 468 So.2d 955, 956-957

(Fla. 1985) ; Everton v. Willard, 468 So.2d 936, 938-939 (Fla. 1985) ;

Butler v. St.te, 450 So.2d 1282, 1283 (Fla. 2d DCA 1984), approved,

469 So.2d 1382 (Fla. 1985).

12 See, e.g., Conover v. Board of County Commissioners, 527 So.2d

946 (Fla. 3d DCA 1988); Delgado v. City of Miami Beach, 518 So.2d

968, 969 (Fla. 3d DCA 1988); Parker v. Murphy, 510 So.2d 990,

991 (Fla. ist DCA 1987); Palumbo v. State Game & Fresh Water

Fish Comm'n, 487 So.2d 352, 353-354 (Fla. ist DCA 1986); City of

Delray Beach v. Watts, 461 So.2d 142 (Fla. 4th DCA 1984), rev.

denied, 475 So.2d 696 ( Fla. 1985); Department of Transportation v.

Neilson, 419 So.2d 1071, 1077-1078 (Fla 1982); Bumbough v. City

of Tampa, 403 So.2d 1139, 1141-1142 (Fla. 2d DCA 1981); Elliott

v. City of Hollywood, 399 So.2d 507, 509 (Fla. 4th DCA 1981);

Payne v. Palm Beach County, 395 80.20 1267, 1268 (Fla. 4th DCA

1981): Ellmer v. City of St. Petersburg, 378 So.2d 825, 827 (Fla. 2d

DCA 1979). In addition, although it is not, strictly speaking, an im-

Unlike the state-law negligence suit hypothesized by

because it discriminates against federal claims—it is not

at all clear that the court below should be required to

entertain petitioner’s action. The gist of petitioner's

challenge to the decision below is that Florida’s juris-

munity, governmental! entities in Florida have no liability for exer-

cises of their “discretionary power to enforce compliance with the

laws” because that “is a matter of governance, for which there has

never been a common law duty of care.” Trianon Park, 468 So.2d

at 919. See, e.g., Kaisner v. Kolb, 509 So.2d 1213, 1216-1217 ( Fla. 2d

DCA 1987); City of Daytona Beach v. Palmer, 469 So.2d 121, 122-

123 (Fla. 1985).

48 In fact, petitioner is in no position to argue now that his par-

ticular claim would have been treated differently had it been based

on state law. As the court below explained, petitioner’s arguments

to the state courts were directed entirely to the legal question

whether sovereign immunity was relevant; as a consequence, t he

extent of that sovereign immunity and its applicability under Florida

law in this case [was] not addressed by [petitioner]” below. JA.

26. See page 3 n.3, supra. In any event, so far as petitioner’s hypo-

thetical is concerned, it is not at all clear that a political subdivision

would be liable in a state common law action for negligence growing

out of a traffic accident that was in ome way related to a discre-

tionary judgment involving law enforcement. See generally Everton

v. Willard, 468 So.2d 936, 938-939 (Fla. 1985); Kaisner v. Kolb, 509

So.2d 1213, 1216-1217 (Fla. 2d DCA 1987).

16

dictional scheme authorizes the state courte to hear an

impermissibly small category of claims and therefore

underinclusive. But in related areas involving

challenges to underinclusive state programs, the Court

has left it to the state courts to determine, as a matter

of state law, whether constitutional defects should be

remedied by expanding or contracting the pool of bene-

ficiaries. See, e.g., Texas Monthly; Inc. v. Bullock, 109

S.Ct. 890, 895-896 (1989) (plurality opinion); Arkar-

sas Writers’ Project v. Ragland, 481 U.S. 221, 227

(1987); Hooper v. Bernalillo County Assessor, 472 U.S.

612, 624 (1985); Zobel v. Williams, 457 U.S. 55, 64-65

(1982); Wengler v. Druggists Mutual Insurance Co., 446

U.S. 142, 152-153 (1980); Orr v. Orr, 440 U.S. 268, 272

(1979). Cf. Heckler v. Mathews, 465 U.S. 728, 739, 740

n.8 (1984); Califano v. Westcott, 443 U.S. 76, 93-95

(1979) (opinion of Powell, J.). Here, there is reason to

doubt that Florida would choose to remedy the defect in

its tort claims statute (assuming that one exists) by

expanding rather than contracting its waiver of immun-

ity. Cf. Shinholster v. Graham, 527 F. Supp. 1318, 1334

(N.D. Fla. 1981). If this Court determines that Florida

law is discriminatory, the choice of remedy accordingly

should be left to the state court on remand.

3. Section 1983 should not be read to confer jurisdic-

tion on state courts.

The conclusion that Florida has a nondiscriminatory

jurisdictional rule that bars the assertion of particular

Section 1983 actions in its courts should be the end of

this case. Petitioner nevertheless asserts (Br. 23-28) that,

even in the absence of discrimination between state and

federal claims, the Florida courts have an obligation to

exercise jurisdiction here because their refusal to do so

somehow reflects an impermissible disagreement with

federal policy. Curiously, however, while the validity of

„ Petitioner appears to suggest (Br. 16) that, even if state juris-

dictional rules may exclude Section 1983 claims from state court

altogether, those rules may not exclude only limited categories of

— enna —— Se eS eee

17

this argument ultimately must turn on the meaning of

Section 1983, petitioner makes virtually no mention of

the statute’s language or legislative history. Yet federal

statutes surely should not be read as an attempt to over-

ride neutral state jurisdictional rules absent some indi-

cation that Congress had such a goal in mind. And it is

plain that, in Section 1983, Congress had no such

intention.

a. As an initial matter, petitioner’s argument would

require a dramatic extension of this Court’s decisions.

The Court never has held that state courts have an obli-

gation to entertain nonanalogous federal actions. See

Hart, The Relations Between State and Federal Law, 54

Colum. L. Rev. 489, 507 (1954). Cf. Employees v. Mis-

sourit Public Health Dept., 411 U.S. 279, 287 (1973). To

the contrary, as we explain above, every decision in

which the Court has required state courts to resolve fed-

eral claims has taken care to emphasize that those courts

already had ample jurisdiction to entertain analogous

state-law suits. Indeed, the Court’s infrequent comments

on the issue raise doubts that Congress has the constitu-

tional authority to expand the jurisdiction of unwilling

state courts. See Brown v. Gerdes, 321 U.S. 178, 188

(1944) (Frankfurter, J., concurring) (“Neither Con-

gress nor the British Parliament nor the Vermont Legis-

lature has power to confer jurisdiction upon the New

York courts”) ; Claflin, 93 U.S. at 141 (“Not that Con-

gress could confer jurisdiction upon the State courts”).

In this regard, it should be added that the discovery of

such congressional authority is not necessary to safe-

guard federal interests: “[s]ince the rights involved are

based upon Acts of Congress, there is no reason to fear

that Congress would fail to give adequate protection to

Section 1983 cases. It is not all clear, however, why this should be

so. Neutral jurisdictional rules routinely preclude suits against cer-

tain categories of defendants; in the federal courts, for example,

both the Eleventh Amendment and the United States’ own sovereign

immunity have this effect. Indeed, the jurisdictional limitations up-

held in Douglas and Mayfield excluded only subclasses of FELA

claims because of the State of residence of the plaintiff or defendant.

Oe

~~

18

these rights” by making an action available in the fed-

eral courts. Sandalow, supra, 1965 Sup. Ct. Rev. at 207

n. 85.“

These doubts about congressional power have partieu-

lar force in the area of sovereign immunity, when (as in

this case) a federal statute is asserted to require a

State’s courts to entertain claims against the State or its

political subdivisions.“ We are not aware of any case in

which the Court has addressed the scope of Congress’s

authority in such circumstances—apparently because the

National Government never has attempted to confer such

jurisdiction on unwilling state courts. Cf. FERC, 456

U.S. at 759, 764-765. It is clear, however, that from the

time of the ratification of the Constitution it has been

“an ‘established principle of jurisprudence’ that the sov-

ereign cannot be sued in its own courts without consent.”

Will v. Michigan Dept. of State Police, 109 S. Ct. 2304,

2310 (1989), quoting Beers v. Arkansas, 61 U.S. (20

How.) 527, 529 (1858). See Nevada v. Hall, 440 U.S.

410, 420 (1979); id. at 431 (Blackmun, J., dissenting).

In the infrequent instances when the issue has been liti-

gated, the Court accordingly has indicated that States

may assert sovereign immunity to preclude even federal

15 There is nothing anomalous in the idea that state law may in

some circumstances preclude the assertion of federal claims in state

court; so long as there is no discrimination against federal claims,

a State may, for example, require compliance with evenhanded pro-

cedural rules before its courts are allowed to consider claims

grounded on federal law. See, e. g., Jimmy Swaggart Ministries v.

Board of Equalization, No. 88-1374 (Jan. 17, 1990), slip op. 18-19;

Michigan v. Tyler, 436 U.S. 499, 512 n.7 (1978).

10 As petitioner explains at some length (Br. 11-13), the Eleventh

Amendment confers an immunity from suit in federal court only

upon entities that are considered arms of the State, a category that

generally does not include the State’s political subdivisions. See

pages 25-28, infra. For the purposes of its own courts, however,

the State plainly may define itself (and describe the entities that

share its sovereignty) however it wishes; that power is itself a

sovereign prerogative. And as we note above (at 8 & n.4), Florida

has treated school boards as state agents that are clothed with

sovereign immunity.

1 F Se o * ea —

19

constitutional claims in state court. See Ohio Oil Co. v.

Conway, 279 U.S. 813, 814 (1929); Palmer v. Ohio, 248

U.S. 32, 34 (1918); Hopkins v. Clemson Agricultural

College, 221 U.S. 636, 642 (1911); Cunningham v.

Macon & Brunswick R. R., 109 U.S. 446, 451 (1883);

Railroad Co. v. Tennessee, 101 U.S. 337, 339 (1880) ."

It is of course true, as the indicated in Penn-

sylvania v. Union Gas Co., 109 S.Ct. 2273, 2285 (1989),

that the States are deemed to have consented to the as-

sertion against them in federal court of suits “based on

* Citing General Oil Co. v. Crain, 209 U.S. 211 (1908), petitioner

asserts (Br. 24-25) that a State may not assert sovereign immunity

in its own courts against a federal constitutional claim. But Crain

—which predated many of the decisions we cite above—is slender

authority for such a profound proposition, “for more reasons than

just the age and moderate obscurity of the case.” Fletcher, A His-

torical Interpretation of the Eleventh Amendment: A Narrow

Construction of an Affirmative Grant of Jurisdiction Rather than

a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1095-1096

Clause. Before dismissing the challenge on the merits,

the Court rejected the State’s argument that its courts lacked juris-

diction to hear the claim; the Court seemingly reasoned that the

Eleventh Amendment would make injunctive relief unavailable in

must be some means of enforcing the

Constitution in some court. 209 U.S. at 226-227. But the proposi-

tion upon which the Court grounded its jurisdictional discussion

scope of the Eleventh Amendment over-

looks the that [Ex Parte} Young (209 U.S. 123 (1908)] re-

jected the position that the Eleventh Amendment bars suit in a

federal court against a state officer acting under an allegedly un-

constitutional authority.” Sandalow, supra, 1965 Sup. Ct. Rev. at

n.89. Justice Harlan thus concurred separately, maintaining

the existence of jurisdiction “certainly is a state, not a federal

question. Surely, [the State] has the right to say of what class of

suits its own courts may take cognizance.” 209 U.S. at 233 (Harlan,

J., concurring I “Crain may well have been overruled by

. 335

Georgia RR. » U.S. 900 (1949), an apparently

identical case in which the Court dismissed the appeal as based on

an adequate state ground.” D. Currie, Federal Courts 208 (2d ed.

1975). See P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart &

Wechsler Federal Courts & the Federal System 587-588 n.2 (1988).

ia

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13823 32432147 111 1111: f ite:

S.Ct. at 2317 (O’Connor, J., dissenting). See Herman,

Beyond Parity: Section 1983 and the State Courts, 54

Brooklyn L. Rev. 1057, 1072 n.72 (1989); Note, The

Enforceability and Proper Implementation of § 1983 and

the Attorney's Fees Awards Act in State Courts, 20

Ariz. L. Rev. 743, 749-750 (1978). Although the juris-

dictional provision 97 Section 1983’s predecessor was

modified (and divided in two) in 1874 with the codifica-

tion of the Revised Statutes,” it apparently was not until

a subsequent revision in 1911, when the jurisdictional

counterparts of Section 1983’s predecessor were omitted

from the list of statutes creating exclusive federal court

jurisdiction, that state courts first were authorized to

entertain Section 1983 actions. Judiciary Act of 1911,

ch. 231, § 24, 36 Stat. 1087, 1160-1161. See Note, supra,

20 Ariz. L. Rev. at 749-750. While it was finally settled

in Martinez—over a century after Section 1983’s prede-

cessor was enacted—that state courts may hear Section

1983 suits, nothing in this history suggests that Congress

had any intention of requiring the exercise of state court

jurisdiction; instead, state courts were authorized to

hear such claims almost offhandedly as part of a rou-

tine revision of the Judicial Code.

None of this is very surprising, for it would have been

peculiar indeed had the 42d Congress required che ad-

judication of Section 1983 claims by state courts. It is,

in fact, almost a truism that “‘[t]he very purpose of

1 Section 1 of the Civil Rights Act of 1871 created the familiar

Seetion 1983 cause of action and then provided for “such proceed-

ing to be prosecuted in the several district or circuit courts of the

United States.” Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13.

Sy contrast, the roughly contemporaneous statute that created gen-

eral federal question jurisdiction explicitly provided for concurrent

jurisdiction in the state courts. Act of Mar. 3, 1875, ch. 137, § 1,

18 Stat. 470 (“the circuit courts of the United States shall have

original cognizance, concurrent with the courts of the several States,

of all suits [meeting a jurisdictional amount requirement) and

arising under” federal law).

2 Rev. Stat. $§563, 629 (1874). See generally Chapman v.

Houston Welfare Rights Organization, 441 U.S. 600, 608-610 (1979).

— . 8 PPP D —

2309, quot ing Patsy, 457 U.S. at 503.“ See Felder, 108

S. Ct. at 2311; District of Columbia v. Carter, 409 US.

418, 427-428 (1973); Mitchum, 407 U.S. at 240-242;

Herman, supra, 54 Brooklyn L. Rev. at 1070-1072. The

very point of Section 1983 was to create a federal court

remedy for civil rights violations; enactment of the stat-

ute was inspired by “the mistrust that the 1871 Congress

held for the factfinding processes of state institutions.”

Patsy, 457 U.S. at 506. The legislative history accord-

ingly is replete with criticism of the state courts.”

21 The Court noted in Patsy that some Members of Congress rec-

ognized that the States retained authority to rectify deprivations

of federal constitutional rights. 457 U.S. at 506-507. These Mem-

bers plainly had it in mind, however, that plaintiffs would proceed

in state courts under state causes of action. See Cong. Globe, 42d

Cong., Ist Sess. 694 (remarks of Sen. Edmunds) (“a citizen might

properly be punished for violating a State law and a United States

law in doing the same act. * [T)herefore, * it is no objec-

tion to the constitutional exercise of power by Congress that the

States themselves in the case of these disorders in the South may,

if they will, punish the same things according to their own laws”) ;

id. at 514 (remarks of Rep. Poland) (referring to “concurrent penal

laws”); ibid. (colloquy between Reps. Poland and Farnsworth)

(referring to state and federal laws addressing the same subject).

See also id. App. 85 (remarks of Rep. Bingham) (“Admitting that

the States have concurrent power to enforce the Constitution of

the United States within their respective limits, must we wait for

their action?”) ; id. App. 216 (remarks of Sen. Thurman) (“by this

section jurisdiction of that civil action is given to the Federal courts

instead of its being prosecuted as now in the courts of the States“)

22 See, e. ., Cong. Globe, 42d Cong., Ist Sess. 374-376 (remarks

of Rep. Lowe); App. 78 (Rep. Perry); 460 (Rep Coburn); App. 85

Indeed, had such an unlikely proposal been made, the

42d Congress would have thought itself without the con-

stitutional authority to require

Section 1983 actions. As the

prevailing constitutional theory held

by a controlling bloc in Congress—was the notion of dual

sovereignty that had been enunciated in Collector v. Day,

78 U.S. (11 Wall.) 118 (1871), Kentucky v. Dennison,

65 U.S. (24 How.) 66 (1861), and Prigg v. Pennsyl-

vania, 41 U.S. (16 Pet.) 539 (1842). See Quern v.

Jordan, 440 U.S. 332, 342 n.14 (1979); Monell v. New

York City Dept. of Social Services, 436 U.S. 658, 673-679

(1978). Under this theory, “state courts entertained fed-

eral actions solely as a discretionary ‘matter of comity,

which the several sovereignties extended to one another

for their mutual benefit. It was not regarded by either

party as an obligation imposed by the Constitution.“

FERC, 456 U.S. at 763 n.28, quoting Dennison, 65 U.S.

(24 How.) at 109. See Warren, Federal Criminal Laws

and the State Courts, 38 Harv. L. Rev. 545, 583 (1925).

Members of Congress thus made clear their view that

“it is not within the power of the Congress of the

United States to lay duties upon a State officer’”

(Monell, 436 U.S. at 673-675, quoting Cong. Globe, 42d

Cong., Ist Sess. 795 (1871) (remarks of Rep. Blair),

a

i

7

(Rep. Bingham) ; 321 (Rep. Stoughton) ; 333-334 (Rep. Hoar); 389

(Rep. Elliott); 394 (Rep. Rainey); 429 (Rep. Beatty); App. 68-69

(Rep. Shellabarger); 345, 346 (Sen. Sherman); 505 (Sen. Pratt);

577 (Sen. Carpenter); 651 (Sen. Sumner); 653 (Sen. Osborn); App.

255 (Sen. Wilson); 571 (Sen. Ames); App. 185 (Rep. Platt); 201

(Sen. Nye); 482 (Rep. Wilson); 487 (Rep. Lansing); App. 195

(Rep. Buckley) ; 251 (Sen. Morton); App. 277 (Rep. Porter); App.

262 (Rep. Dunnell); App. 311 (Rep. Maynard) (1871). Petitioner's

observation that “it defies commonsense to argue * * * that the 42nd

Congress intended to defer to the authority of the states to shield

state officials from § 1983 liability” (Br. 14) accordingly misses the

mark, since “most members of Congress apparently did not ‘intend’

the state courts to entertair. section 1983 actions at all, at least not

in the usual sense of the word.” Herman, supra, 54 Brooklyn L. Rev.

at 1071.

"= —- - ”™ 1 ˙ .üAö—⏑—ãi—˙ ö Sel eee ee ee

and pointed to state supreme court decisions that had

invalidated federal burdens on the processes of state

courts on the ground that they “threatened the independ-

ence of a vital state function.” Monell, 436 U.S. at 679.

While the Day-Dennison-Prigg view of federal authority,

is, of course, no longer the law, see, e. g., Puerto Rico v.

Branstad, 483 U.S. 219, 224-229 (1987) (overruling

Dennison), that understanding was controlling when Sec-

tion 1983 was written; it therefore is hardly likely that

the statute was intended to impose uniquely burdensome

obligations on state courts. And in the absence of such

a congressional intent, Section 1983 should not be read

as an attempt to override neutral state jurisdictional

rules.

B. School Boards In Florida May Not Be Amenable To

Suit As ersons Under Section 1983.

The discussion above, in our view, makes clear that the

district court of appeal was under no constitutional obli-

gation to exercise jurisdiction over petitioner’s claim.

But even if we are wrong in this, so that the court below

must entertain petitioner’s suit, there is reason to doubt

that the respondent school board is a proper defendant in

a Section 1983 action.

We recognize, of course, that school boards often have

been made defendants in such actions. See, e.g., Mt.

Healthy City Board of Education v. Doyle, 429 U.S. 274

(1977); Monell, 436 U.S. at 663 n.5. But the Court’s

holding in Will that States are not “persons” within the

meaning of Section 1983 extends to all “governmental

entities that are considered ‘arms of the State’ for Elev-

enth Amendment purposes.” 109 S.Ct. at 2311. See

Monell, 436 U.S. at 690 n.54. Whether a particular

school board has the characteristics that entitle it to

share in the State’s immunity therefore “depends, at

least in part, upon the nature of the entity created by

state law.” Mt. Healthy, 429 U.S. at 280. See Moor v.

County of Alameda, 411 U.S. 698, 719 (1973). See gen-

erally Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391, 401-402 (1979). And

federal courts in other jurisdictions, after conducting a

detailed review of state law, have concluded that certain

school boards “should be considered arms of the state.”

Garcia v. Board of Education, 777 F.2d 1403, 1407 (10th

Cir. 1985), cert. denied, 479 U.S. 814 (1986). See

Maestas v. Board of Education, 749 F.2d 591, 592 (10th

Cir. 1984); Martinez v. Board of Education, 748 F.2d

1393, 1394-1396 (10th Cir. 1984).

Here, there is a substantial argument that Florida

school boards, like the State whose agents they are, may

not be amenable to suit under Section 1983. In contrast

to the state law considered relevant in Mt. Healthy, see

429 U.S. at 280 (citing Ohio Rev. Code Ann. § 2743.01

(Page Supp. 1975)), Florida law treats state agencies

and _ subdivisions—including school boards—identically

for sovereign immunity purposes. Fla. Stat. § 768.28(2).

Indeed, Florida law has long provided that

[cJounty boards of public instruction are agencies

of the State and as such are clothed with the same

degree of immunity from suit as is the State. They

are the creatures of the Constitution, constituted as

quasi corporations for the purpose of exercising

under legislative authority such part of the govern-

mental powers of the State as the law confides in

them.

Buck v. McLean, 115 So.2d 764, 765 (Fla. Ist DCA 1959).

See Richter v. Dade County Board of Public Instruction,

91 So.2d 794 (Fla. 1957); Bragg v. Duval County Board

of Public Instruction, 36 So.2d 222 (Fla. 1948).“ As a

23 In this, county school boards—and counties themselves—stood

in sharp contrast to municipalities prior to the enactment of Flor-

ida’s tort claims statute. As in most jurisdictions, municipalities in

Florida had long been treated as identical to private entities for

many purposes, and therefore as amenable to suit. See Cauley v.

City «f Jacksonville, 403 So.2d 379, 381-384 (Fla. 1981); Com-

mercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015-

1016 (Fla. 1979); City of Tallahassee v. Fortune, 3 Fla. 19 (1850).

See generally Will, 109 S.Ct. at 2310 n.7; Owen v. City of Inde-

pendence, 445 U.S. 622, 638-639 (1980). But under Florida law,

assure efficient operation of all schools and adequate edu-

cational opportunities for all children is retained hy the

state.” Fla. Stat. § 229.011. See Fla. Const. Art. IX,

Fla. Stat. §§ 228.002, 228.01-.04. The dl istriet schoo

system” thus is defined as “part of the state system of

public education.” Fla. Stat. § 228.041. See Fla. Stat.

§ 230.03(1). Conversely, the state board of education is

“the chief policymaking and coordinating body of public

education in Florida.” Fla. Stat. § 229.053(1).

Needless to say, local school boards do have substantial

responsibility for managing schools in their districts.

See Fla. Stat. § 230.03(2). But they must exercise that

responsibility “in conformity with regulations and mini-

mum standards prescribed by the state.” Fla. Stat.

230.01. The State thus sets out detailed requirements

relating to personnel (Fla. Stat. §§ 231.001-.69), attend-

ance and child welfare (Fla. Stat. §§ 232.01-.50), cur-

“(t]he one feature which sufficiently distinguishes [counties from

municipalities} is that counties are under the [State] Constitution

political subdivisions of the state, municipalities are not; the county,

under our Constitution, being a mere governmental agency through

which many of the functions and powers of the state are exercised.”

Keggin v. County of Hillsborough, 71 So. 372, 373 (Fla. 1916). As

a result, counties were absolutely immune from suit in Florida prior

to enactment of the State’s tort claims statute. See, e., Kaulakis

v. Boyd, 188 So.2d 505, 507 (Fla. 1962); Keggin, 71 So. at 373;

Dade County v. Florida Ass'n of Workers for the Blind, 173 So.2d

160, 161 (Fla. 3d DCA 1965) ; Broward County v. Bouldin, 114 So.2d

787, 741 (Fla. 2d DCA 1959).

riculum (Fla. Stat. §§ 233.011-.63), transportation (Fla.

Stat. §§$ 234.01-.212), and use of educational facilities

(Fla. Stat. §§ 235.001-.435). See also Fla. Stat.

§§ 228.093 (record-keeping) ; .101 (display of flags) ; .121

(tuition); .195 (food service programs). And while

school boards may levy taxes and issue bonds, as conced-

edly also was true in Mt. Healthy, see 429 U.S. at 280, in

7

{

17

+

1

fi

1

F

2 State funds account for 52.1% of the Pinellas County Schools’

1989-1990 budget. Annual Budget Summary, 1989-90, Pinellas

County Schools, Clearwater, Florida, 3.

As petitioner recognizes (Br. 11 n.9), he also would be obli-

gated to demonstrate on remand that the challenged practices were

taken pursuant to an official school board policy. See Monell, 436

U.S. at 691-695. =

29

CONCLUSION

The judgment of the district court of appeal should be

affirmed.

February 8, 1990

BENNA RUTH SOLOMON

CHARLES ROTHFELD

STATE AND LOCAL LEGAL CENTER

444 North Capitol St., N.W.

Suite 349

Washington, D.C. 20001

(202) 638-1445

Counsel of Record for the